PREVENDIDO v Minister for Immigration

[2014] FCCA 215

FEDERAL CIRCUIT COURT OF AUSTRALIA

PREVENDIDO v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 215

Catchwords:
PRACTICE AND PROCEDURE – Costs – where applicant seeks to file notice of discontinuance – where notification of intention to withdraw in close proximity to hearing – where applicant sought agreement from respondent that each party to pay its own costs – where respondent claimed entitlement to costs – where respondent made offer less than scale costs – where offer refused and agreement not reached – assessment of costs.

Berenguel v Minister for Immigration and Citizenship [2010] HCA 8

Applicant: FE (MARIA) PAGUIO PREVENDIDO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 969 of 2013

Judgment of: Judge Raphael

Hearing date: 6 February 2014

Date of Last Submission: 6 February 2014

Delivered at: Sydney

Delivered on: 6 February 2014

REPRESENTATION

Solicitors for the Applicant: Simon Diab & Associates

Solicitors for the Respondent: DLA Piper Australia

ORDERS

1. Applicant to pay the Respondent’s costs assessed in the sum of $4,250.00.

2. Application dismissed.

3. The name of the First Respondent be amended to ‘Minister for Immigration and Border Protection’.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 969 of 2013

FE (MARIA) PAGUIO PREVENDIDO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This matter was set down for hearing before me today, on 1 July 2013.  The applicant is represented by a solicitor.  The decision which is sought to be reviewed was a decision of the Migration Review Tribunal which found itself unable to change the decision of a delegate, who found that the applicant did not comply with the provisions of clause 485.215 in Part 485 of Schedule 2 of the Migration Regulations 1994 (Cth).

2. The short point was that the applicant did not have competent English as defined by reg.1.15C of the Regulations because the only IELTS test report that she had indicating competence was a report that was created more than two years before she made the application for a visa.  And in the light of changes that have occurred to the Regulations after the decision in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 the Tribunal was unable to provide the applicant with another opportunity to take a test and had to look at the matter as it stood at the time she made the application.

3. It is clear from the Tribunal’s reasons for decision that the applicant was trying to argue that the Tribunal had some form of discretion in relation to this matter.  The applicant having obtained a degree from a university in Australia in which she was taught in English and obtained registration as a nurse in this country, it was being argued that she must have competent English and must therefore have been entitled to obtain the Skilled (Provisional) (Class VC) visa for which she had applied. 

4. In the court’s view there really was no argument that the applicant could put forward, let alone the argument suggested to the Tribunal, that would have succeeded.  The Tribunal’s decision was not an error of law.  There were no other suggested jurisdictional errors. 

5. In the course of January the applicant and her solicitor and counsel who had been retained in the matter came to consider the application and rightly concluded that it could not be successful.  On 29 January 2014 the applicant’s solicitors wrote to the Minister’s solicitors advising them that they would withdraw the application.  They attempted to do this on the basis that each side pay its own costs but the Minister determined that he was entitled to his costs given the late period.  And what is before me today is merely an assessment of those costs.

6. The regulations have provided guidance to the court as to the appropriate amounts to be paid by an unsuccessful party in migration proceedings at various stages of those proceedings.  This is just an indication of what the court might award.  It is not a requirement and the court frequently awards less where it believes that the work involved in the matter does not justify a full award.  The suggested amount in the scale for a matter that is discontinued less than 15 days before the hearing, as this one was, is $4,652.00. 

7. The Minister’s solicitors indicated to the applicant’s solicitors that they would be prepared to accept the sum of $4,100.00 but the applicant’s solicitors believed that a figure of approximately $2,000.00 is more appropriate.  The court has noted that neither party made submissions in accordance with the short minutes of order of 1 July 2013 and, as I understand it, counsel was not briefed by the respondent.  On the other hand, because of the failure to agree, both parties have had to attend today.

8. In my view, the applicant should have realised much earlier than this how hopeless her case was and withdrawn at an appropriate time, given that she was legally represented.  To withdraw a mere seven days or so before the hearing, whilst saving costs of briefing and attending a hearing, and time for the court in considering the matter and providing a judgment, does not justify the extended discount being suggested by the applicant.  I think the offer of $4,100.00 was reasonable when it was made and I believe it should have been accepted.

9. In those circumstances, I propose to order that the applicant pay the respondent’s costs which I will assess in the sum of $4,250.00 to include today.  And because no notice of discontinuance has actually been filed, I will also order that the application be dismissed.  The name of the first respondent will also be amended to Minister for Immigration and Border Protection.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  12 February 2014